Deeplinks

As we've discussed previously, Choruss is the name of the new entity, backed by three major record labels, that is interested in granting blanket licenses to universities (and someday residential ISPs) to authorize the music swapping (on P2P and otherwise) that has become a fact of digital life. As a big fan of voluntary collective licensing, EFF is following the development of Choruss closely and with great hopes. At the same time, there are many devils in the details.

Fortunately, the public debates about Choruss (which is still a work in progress) have begun, with those on both sides contributing valuable thoughts about the advantages and disadvantages of Choruss (or any system like Choruss):

Jim Griffin, the head of Choruss, recently delivered a speech aimed at dispelling a number of myths that have been taking root.

For our final post of the week, we looking at the context of a series of documents from the fall of 2004, right around the time that the Bush Administration learned that the press had learned of the warrantless wiretapping program.

According to Newsweek, in the summer of 2004, whistle-blower Thomas Tamm first contacted Eric Lichtblau of the New York Times regarding the warrantless surveillance program. “Eighteen months after [Thomas Tamm] first disclosed what he knew, the Times reported that President George W. Bush had secretly authorized the NSA to intercept phone calls and e-mails of individuals inside the United States without judicial warrants.” The New York Times story ran in December 2005, and the summer of 2004 is about 18 months earlier (approximately June 2004).

“As the outlines of the story became clearer, [New York Times reporter] Jim [Risen] decided to reach out directly to the NSA late in the summer of 2004.” In 2004, summer turned to fall on September 22. Risen “finally got [NSA Director] Hayden on the phone and asked him about an NSA program to eavesdrop on Americans without a warrant.” Eric Lichtblau, Bush’s Law (p. 193).

The NY Observer reported that, in "October 2004, Mr. Risen first presented editors with a story about the secret N.S.A. wiretapping program.” Also in October 2004, Litchblau met with Jack Goldsmith, former head of the DOJ’s Office of Legal Counsel, and asked “a few questions about what he called a secret NSA program.” Jack Goldsmith, The Terror Presidency (p. 178). Goldsmith “went straight to the Justice Department to tell Jim Comey, the Deputy Attorney General with whom [he] had worked intimately on NSA matters, about the conversation.”

“Bush and ten senior advisors in the White House and the intelligence community would make personal pleas not to run the story in the series of meeting spanning fourteen months, beginning in October of 2004.” Bush’s Law (p. 193). “At first, Bush’s advisors spoke in hypotheticals…. Once this hypothetical charade ended, the administration officials started getting into real-life details.” To generate such 'real-life details,' the Bush Administration would need to have the operatives provide summaries and reports.

According to a declaration filed by David Hardy (Section Chief of the FBI's Record/Information Dissemination Section) on October 6, 2004, the FBI’s Counter-Terrorism Division (CTD) produced an Intelligence Report “concerning the importance and value of information collected by the TSP and acted on by the FBI in several FBI counterterrorism investigations. This Intelligence Report consists of backgrounds and summaries of these investigations with specific investigative information as to the use and value of TSP information in the successful accomplishments within these investigation.”

“A week before the election in November [2,] 2004, [Lichtblau and Risen] had a draft of a story in hand that laid out the NSA program.” Bush’s Law, (p. 196). “The decision was made to hold the story before the election, but within days of Bush’s reelection, we began a new round of meetings.” (p. 197).

On November 23, 2004, CTD produced an internal memorandum “concerning investigative leads generated by TSP information and acted on by the FBI in certain FBI counterterrorism investigations. This memorandum delineates the actions and tasks performed by the FBI Unit in CTD that is responsible for the administration of the TSP pursuant to these investigative leads.” The same day, the FBI’s Office of the General Counsel produces a document “containing questions and answers regarding certain statistical and investigative information regarding the TSP.”

The Hardy declaration does not state which of CTD's units is responsible for the administration of the Program. The declaration also states that "two specific FBI Sections in CTD are the primary beneficiaries of TSP information." As reported by Wired News, FBI Director Robert Mueller's notes on the infamous March 2004 hospital confrontation over NSA surveillance indicate the responsible unit is part of either the Communication Exploitation Section (which includes the controversial Communications Analysis Unit) or the Terrorist Financing Operations Section.

“By mid-December of 2004, the [New York Times] editors had made a decision … The story would not run.” Bush’s Law (pp. 197-98).

In the end, the Bush Administration successfully convinced the New York Times to hold a critical news story for over a year. In the newspaper's articles following the initial story, the New York Times reported that “Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.” However, a month later, the Times reported that "[t]he F.B.I. and other law enforcement officials also expressed doubts about the importance of the program's role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch."

The public deserves to know what the Administration said to the newspaper that convinced them to keep silent on an ongoing violation of the rights of millions of ordinary Americans. We urge the Obama Administration to release these documents.

Attorney General Eric Holder today issued new guidelines (PDF) on federal agency implementation of the Freedom of Information Act (FOIA). The guidelines were issued pursuant to a directive issued by President Obama on January 21, his first full day in office. Like the Obama directive itself, the Holder guidelines express strong support for government transparency and establish a presumption in favor of disclosure of information requested under FOIA.

Perhaps most notably, the new guidelines rescind the so-called Ashcroft memo, issued by the former Attorney General in October 2001. That directive -- widely criticized within the open government community -- encouraged agencies to resist disclosure of requested information and to release documents "only after full and deliberate consideration" of the potential harms that might result. The Ashcroft memo also assured agencies that the Justice Department would defend in court any decisions to withhold information "unless they lack a sound legal basis."

The new Holder guidelines echo the more pro-disclosure policy of former Attorney General Janet Reno and, like the Reno directive, encourage agencies to make "discretionary" disclosures of information that is not clearly required to be withheld as a matter of law. The new guidelines provide:

First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.

On the issue of defending agencies whose withholding decisions have been challenged in court, Attorney General Holder also returns to the Reno standard and directs that DOJ "will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law." This policy will apply to cases currently pending in the federal courts:

With regard to litigation pending on the date of the issuance of this memorandum, this guidance should be taken into account and applied if practicable when, in the judgment of the Department of Justice lawyers handling the matter and the relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.

The impact of the Holder guidelines on pending FOIA lawsuits is of particular interest to EFF. As we've previously noted, we have filed motions in several of our FOIA cases asking the courts to delay further proceedings until the new guidelines are issued and the defendant agencies can consider the impact of the new pro-disclosure policies of the Obama administration.

With the issuance of today's guidelines, both the President and the Attorney General have articulated an extremely pro-transparency policy for the federal government. The fact that these pronouncements come so early in the life of the new administration is a particularly promising development. But, as they say, the proof is in the pudding and it remains to be seen if these proclamations from on high produce real results down in the bureaucratic trenches. We will soon learn in our pending lawsuits whether the new administration is truly prepared to reverse the pro-secrecy practices of the Bush administration.

Anyone that has attempted to keep a close eye on the work of Congress has experienced the frustration of seeing attempts to sneak new language into a bill hours before a vote, or, as we saw often in the fight against the FISA Amendments Act, seeing legislators disappear behind closed doors during critical moments of a debate. Recently, we watched carefully during the stimulus bill debate for a rumored amendment seeking to allow ISPs to apply copyright filters to customers' Internet connections. And today, Paul Blumenthal at the Sunlight Foundation posted examples of legislators being blindsided by last-minute conference committee changes to the stimulus bill -- changes that allegedly allowed bailout-recipient A.I.G. to issue massive bonuses to executives. During these episodes, the machinery of power is driven behind closed doors, where even legislators are prevented from inspecting the process for errors or corruption.

The Sunlight Foundation's ReadTheBill.org is pushing for a simple solution: Congress should post all bills online 72 hours before before they are debated. With such a rule in place, members of the public would be able to inspect legislation and have a real chance to express their feelings to their elected representatives. As we inspect issues of government transparency and the public's right to know during Sunshine Week, consider signing ReadTheBill.org's simple petition encouraging Congress to take the commonsense step of allowing everyone to read and consider bills before they're made into laws -- not after.

Today, we continue by examining the context surrounding an intriguing 2002 memo known as OLC 129. According to a declaration filed by Deputy Assistant Attorney General Steven Bradbury:

OLC 129 [is] a nine-page memorandum, dated October 11, 2002, from a Deputy Assistant Attorney General in OLC to the Attorney General prepared in response to a request for OLC’s views concerning the legality of certain communications intelligence activities.

In October 2002, John Yoo was the only Deputy Assistant Attorney General in the Office of Legal Counsel (OLC) who was read-in to the Program, and John Ashcroft was the Attorney General.

Director of National Intelligence Michael McConnell noted in a letter to Senator Specter that the “details of the activities [of the NSA program] changed in certain respects over time and I understand from the Department of Justice these activities rested on different legal bases."

This memo was written almost a year after the initial memos on the Program, and its timing does not fit a pattern of regular reviews. The most recent NSA surveillance memo prior this one was the February 8, 2002 Memo to the Department of Defense about "the legality of certain hypothetical activities," and the next most recent was two-page memo from January 2002 "which relates to the Attorney General’s review of the legality of the President’s order authorizing the TSP in the course of considering that program’s reauthorization." This suggests that, in October 2002, there was a new question arising from the Program's operation.

Former Senator Graham was the chair of the Senate Intelligence Committee until January 3, 2003, and attended at least four briefings on the NSA surveillance program, starting in October 2001. According to the Washington Post, Graham said that Administration briefers told him in October 2002 that President Bush had authorized the NSA to tap into the stream of global telecommunications passing through junctions on U.S. territory, allowing the NSA to intercept “conversations that . . . went through a transit facility inside the United States.”

the meeting that I attended focused on the fact that there were telephone communications from one foreign site to another that were now being sent, transited through the United States. … The question was, could the NSA collect those intercepts, since technically they were inside the United States. The administration felt they should be able to do so.

On October 17, 2002, NSA Director Michael Hayden said in testimony that "last week we cemented a deal with another corporate giant to jointly develop a system to mine data that helps us learn about our targets."

Kim Zetter reported in Salon that "[i]n a pivotal network operations center in metropolitan St. Louis, AT&T has maintained a secret, highly secured room since 2002 where government work is being conducted. ... details provided by the two former workers about the Bridgeton room bear the distinctive earmarks of an operation run by the National Security Agency, according to two intelligence experts with extensive knowledge of the NSA and its operations."

As set forth in a declaration by former AT&T employee Mark Klein, the NSA began preparing AT&T employees for a “special job” in 2002. AT&T’s document setting forth the procedure for splitting fiber optic cable into the “SG3 Secure Room” at the Folsom Street Facility was written on December 10, 2002. In January 2003, AT&T finished creating the SG3 Secure Room, and wrote two more documents providing “cut in and test procedure” for the fiber optic splitter. The work order for the San Francisco room came from AT&T's Bridgeton network operations center.

OLC 129 could shed critical light on the legal analysis behind the dragnet surveillance program where the nation’s telecommunications companies violated the law and the privacy of their customers by collaborating with the government in a massive, illegal program to wiretap and data-mine Americans' communications. We urge the Obama Administration to release this memo.

Former CNET blogger Chris Soghoian has produced some of the best coverage on the issue of privacy for users of government websites. His
http://news.cnet.com/8300-13739_3-46-1.html?tag=mncol">work on the use of YouTube cookies and other tracking technologies on whitehouse.gov brought public attention to the issue, and inspired EFF to get involved.

Beyond informing the public, Soghoian's work in this area has arguably had positive effects on policy. The Obama team has made several commendable adjustments to their privacy and video hosting policies including adding a prominent link to their privacy policy and using YouTube's new "delayed cookies" functionality-- results that seem related, at least in time, to Soghoian's sustained coverage of the issue.

It comes as a surprise, then, to hear that CNET will no longer carry Soghoian's blog. While Soghoian's confrontational style and irreverent approach may have been factors, it appears the decision to drop his blog largely stems from a minor kerfuffle over a headline. A Soghoian post initially titled "White House Ditches YouTube After Privacy Complaints" brought loud denials from the YouTube and the Obama team. The Obama folks belatedly said that their use of non-YouTube video was only an experiment, a possibility that Soghoian mentioned in his article.

If companies like CNET want the energy and edginess of bloggers like Soghoian — who did real research and reporting instead of just republishing or commenting on the work of others — they need to be willing to support them when that same edge sparks a backlash from powerful forces. Without such backbone, it's hard to see how Internet news sources will ever be able to fill the shoes of the rapidly disappearing print media empires.

Meanwhile, the problem of cookies and other tracking technologies on government sites remains. We're looking forward to reading Soghoian's continuing coverage of it on his new blog, Slight Paranoia — already he has blogged about his development of a Firefox add-on that installs opt-out cookies for most of the major targeted advertising networks. And we hope that CNET, along with other media, will continue to cover the story and keep the pressure on YouTube and the White House to protect the privacy of those using government websites.

Today, we turn to a document known as OLC 62. According to a declaration filed by Deputy Assistant Attorney General Steven Bradbury:

OLC 62 [is] a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.

Since OLC 62 is a document from a Freedom of Information Act lawsuit seeking documents about the NSA warrantless wiretapping program, we know that the memo dealt with that subject. At the time, John Yoo was the only Deputy Assistant Attorney General in the Office of Legal Counsel (OLC) who was cleared for the NSA Program, indicating he was the author.

On March 2, 2009, the DOJ released a memo, dated January 15, 2009, that rescinded a February 8, 2002, memo from OLC Deputy Assistant Attorney General John Yoo to William J. Haynes II, the General Counsel of the Department of Defense. It would be quite a coincidence if this was not a reference to the same memo.

The January 15, 2009, memo was written by Bradbury. Bradbury describes the February 8, 2002, memo as incorrectly asserting that Congress did not include a clear statement that FISA overrode the president’s “inherent” authority to conduct warrantless wiretapping, citing page 13. This indicates is it at least 13 pages long.

The January 15, 2009, memo redacts the subject of the February 8, 2002, memo, citing to “Re: [Classified Matter].” Thus, while we know that the February 8, 2002, memo dealt with the so-called inherent authority for the Executive to conduct warrantless wiretapping in violation of FISA, we do not know what the “certain hypothetical activities” were. However, the use of the term “hypothetical” suggests that, on February 8, 2002, the activities were not yet operational.

There are a couple of interesting Department of Defense surveillance initiatives around that time that one would expect the DOD to seek legal advice before conducting. One is the Total Information Awareness (TIA) program, which was established at the Department of Defense (DOD) in January 2002. (See DOD’s Executive Summary).

The public deserves to know about the programs that the DOD considered in reliance on John Yoo’s flawed (and subsequently withdrawn) legal analysis. We urge the Obama Administration to release this memo.

Updated, April 8 2009: Recently, the government filed a brief in the ACLU's Freedom of Information Act (FOIA) case over OLC 62. In the brief, the government confirmed that the January 15, 2009 OLC memorandum "references to OLC 62," and acknowledged "that OLC 62 ... contains a particular 'questionable proposition' of law." OLC 62, which addressed "the legality of certain hypothetical activities," misapplied the Foreign Intelligence Surveillance Act. Nevertheless, the government asserted the contents of OLC 62 remain either "classified or nonsegregable from information that is classified," and insisted that it remain at the bottom of a deep, dark well of secrecy.

The battle to control online music has taken a particularly outrageous turn. As if private censorship, fines, intimidation and blacklisting weren't enough, now the Department of Justice — for the first time we're aware of — is threatening to throw a man in jail for noncommercial music-sharing.1

At issue is a pre-release leak of the Guns N' Roses album Chinese Democracy. In August 2008, blogger Kevin Cogill was arrested at gunpoint at his home in Los Angeles. He was charged under the 2005 Family Entertainment and Copyright Act with posting tracks from the album prior to its release date. In October, Cogill plead guilty [PDF], and last week the government asked for a six-month prison sentence.

At the heart of the DOJ's case is the assumption that Cogill was the original source of the album leak, and therefore bears full responsibility for every subsequent download of the album until its official release in November 2008.

A quick search of popular bittorrent trackers reveals that a torrent of many of the tracks in question was available in March of 2007, a full 13 months before Cogill's supposed initial leak.

While Cogill did post copies of the tracks (received from an anonymous source on "internet chat") to his music blog Antiquiet in June 2008, the post would have had little or no impact on the global availability of leaked copies. The tracks were posted for streaming-only, with no direct-download link. They were available for only twenty minutes before the website crashed and the files were removed.

It's true that it would have theoretically been possible for someone to rip all nine tracks into MP3s during those twenty minutes. But, because the album had been available through other channels for so long, it's improbable that anyone would even bother to attempt ripping the Antiquiet streams, and certain that it would have made no difference in the album's availability even if someone did.

Of course, it's easy to see why the DOJ (and the RIAA, the real motivating force behind the prosecution) ignore all this. By casting Cogill as the master-leaker, they can attempt to saddle him with responsibility for 375,376 illegal file downloads and $2,236,500 in damages to RIAA member companies. (See David Kravets' excellent article in Threat Level for a breakdown of the ridiculous mathematics at work here.) The flaws in these conclusions are familiar to Deeplinks readers: Not every download constitutes a lost sale. Many industry experts believe pre-release leaks actually increase sales. The RIAA has a long history of playing make-believe with the costs of music piracy. Too bad the DOJ has wasted your tax dollar playing the same game.

The judge in this case, however, can opt-out of the game. We urge the judge not to add jail time to the long list of unreasonable penalties for sharing music.